As the debate rages on whether or not the junta that took over power in Niger Republic should be forced out, Chidi Odinkalu, a lawyer and a teacher, has argued that a military invasion requires more than the orders of presidents. Military planners, according to him, “have to design a concept of operations (CONOPS) and, these days, military lawyers too have to weigh in. The former is not-negotiable but lack of the latter has never stopped politicians from going ahead…”
Odinkalu cited what happened during the seccession of Panama from Colombia and the involvement of the US in the process. He said: “The use of force in defence of the idea of a sovereign republic or of democracy is so high-minded that, quite often, presidents lack the patience to finesse its legality. In November 1903, military sleigh of hand by President Theodore Roosevelt achieved the secession of Panama from Colombia. In Cabinet subsequently, President Roosevelt asked his Attorney-General, the appropriately-named Philander Knox, to provide the legalese in support of the operation, to which Mr. Knox is reported to have infamously responded: ‘Mr. President, do not let so great an achievement suffer from any taint of legality.’”
Odinkalu, therefore, counselled that the leaders of ECOWAS could desperately do with their own Philander Knox as they contemplate their options in Niger Republic. “If they can find one, they may not have to worry about soiling their bayonets for democracy with any taint of legality. But they will still need a workable CONOPS. That may be the practical problem that compels ECOWAS ultimately to give diplomacy a chance in Niger.”
Odinkalu cited precedent for this. One week after Colonel Pierre Buyoya’s (second) coup against the elected government of President Sylvestre Ntibantunganya on July 25, 1996, seven neighbouring countries, according to him, initiated a complete blockade of land-locked Burundi at the beginning of August. By common consent, the sanctions “ultimately played a major role in pressuring the Buyoya government into the Arusha negotiations due to their severe cost”, which forced Buyoya in 2003 to cede power to a new president, Domitien Ndayizeye.
Odinkalu who received his PhD in Law from the London School of Economics and Political Science knows his onions when he writes. In September 2021 when the Fletcher School announced the appointment of the human rights law expert to a Professor of Practice faculty position, the Academic Dean, Kelly Sims Gallagher, described him as a “renowned human rights activist with a distinguished record of public service who has spent more than three decades working at the front line of human rights law and research, development advocacy, international institutional law and governmental policy. Gallagher went further: “His profound contributions to the advancement of human rights intersect with Fletcher’s mission and core values. We are delighted to welcome him to the Fletcher community.”
On its website, the school revealed: “Odinkalu’s background reflects an extensive record of research, publishing and teaching in the areas of human rights, development law and public policy throughout Africa, Europe and the US. Most recently, he was part of a three-member team that mediated the readmission of The Gambia into the Commonwealth, where he litigated human rights before national and regional courts as well as in transnational contexts. From 2011 to 2015, he chaired Nigeria’s National Human Rights Commission, the country’s lead institution for the protection of human rights and promotion of human rights policy. He also worked within human rights philanthropy. For 10 years prior, he was involved in drafting the Protocol for the African Court on Human and Peoples’ Rights through to adoption by the Organisation of African Unity (OAU), in Ouagadougou, Burkina Faso in 1998.
In 2004, he led the advocacy effort for its entry into force with the creation of the Coalition for the African Court on Human and Peoples’ Rights. For more than three years, until 1993, Odinkalu was head of legal services for the Civil Liberties Organization in Lagos, where he was responsible for litigation, advocacy and constituent building strategies, as well as managing relationships with the military government and its institutions.”
So, when Odinkalu talks, policy makers should listen.
Below is his full submission, entitled:
Bayonets for democracy
By Chidi Odinkalu
Democracy is a very evocative notion. In the name of restoring or defending it, presidents have wielded bayonets, levied war, and executed coups. On August 10, 2023 a summit of the Assembly of Heads of State and Government of the Economic Community of West African States, ECOWAS, rose from its convening in Abuja, Nigeria’s federal capital, with an explicit order for “the deployment of the ECOWAS Standby Force to restore constitutional order in the Republic of Niger”.
The following day, the headline was “West African nations order troops to restore democracy in Niger after military coup.” But, if the idea of “ordering troops” to “restore democracy” sounds like an oxymoron, it’s because it actually is.
In the aftermath of the chaos left after armed interventions led by the United States of America in Iraq in 2003 and by the North Atlantic Treaty Organisation, NATO, in Libya in 2011, however, the idea of bayonets for democracy has lost currency. A military invasion, in any case, requires more than the orders of presidents. Military planners have to design a concept of operations, CONOPS, and, these days, military lawyers too have to weigh in. The former is not-negotiable but lack of the latter has never stopped politicians from going ahead.
Thwarted by France and Russia in its desire for a UN Security Council authorisation of use of force against Iraq in March 2003, the USA decided to proceed nevertheless with its own coalition of the willing. Having talked up its causus belli as Saddam Hussein’s ultimately non-existent weapons of mass destruction, President George W. Bush had to find another reason for his regime change project in Iraq.
Addressing his country and the world at the beginning of the invasion on March 19, 2003, President Bush claimed that his mission was to “disarm Iraq, to free its people and to defend the world from grave danger” so as “to remove a threat and restore control of that country to its own people”. In other words, he was a warrior for democracy (in Iraq).
President Bush was not the first US leader to order or tolerate military action against another territory nor was he a pioneer in the business of doing that in the name of democracy. One hundred and ten years before the invasion of Iraq, during the presidency of Benjamin Harrison, armed activity by US military assets toppled Queen Liluokalani of Hawaii in 1893, ultimately leading to its annexation.
When in December 1909, President Howard Taft’s administration masterminded the overthrow of Nicaragua’s José Manuel Zelaya, it was because, as stated by then Secretary of State, Philander Knox, “under the regime of President Zelaya, republican institutions have ceased in Nicaragua except in name.” The excuse was the defence of democracy.
Twenty years before President Bush ordered the invasion of Iraq, President Ronald Reagan had also invaded Grenada, a small island on the eastern Caribbean, in the name of democracy. In March 1979, the Marxist, New Jewel Movement led by Maurice Bishop and Bernard Coard had overthrown Grenada’s first prime minister, Eric Gairy, in a populist coup that initially promised “all democratic freedoms, including freedom of elections, religion, and political opinion”. Instead, on taking power, Prime Minister Bishop retrenched the constitution and parliament, preferring instead to rule by populist decrees.
In October 1983, a long-running rivalry between Maurice Bishop and his deputy, Bernard Coard, over ideological purity of the New Jewel Movement ended with the army commander, General Hudson Austin, throwing his weight behind Coard. Bishop was placed under house arrest and, following an effort by his supporters to free him, a confrontation ensued in which he and his leading supporters were massacred on October 16, 1983, leaving the Movement in the control of Marxist purists whom the United States could not tolerate.
Citing a dubious “invitation” by some states of the Organisation of Eastern Caribbean States, the USA launched an invasion of the Island on October 25, 1983. The goal, as captured in the back-dated letter of invitation by Sir Paul Scoon, whom they installed as Prime Minister after the invasion, was “to facilitate a rapid return to peace and tranquility and a return to democratic rule”.
In response, the United Nations General Assembly adopted a resolution which “deeply deplored the armed intervention in Grenada”, describing it as “a flagrant violation of international law and of the independence, sovereignty and territorial integrity of that state”. Senator Daniel Patrick Moynihan of New York boiled down the case against the invasion of Grenada in a one sentence declamation: “I don’t know that you restore democracy at the point of a bayonet.”
This did not prevent President Bush’s father, the first President HW Bush, from overthrowing former US client, Manuel Noriega, in Panama, in 1989. Noriega had emerged as the effective leader of Panama and its army chief after the killing in a suspicious helicopter crash of General Omar Torrijos at the end of July 1981, followed by the systematic, often macabre elimination of his most significant opponents. By 1989, Noriega had become so dominant that he single-handedly procured the nullification of the victory in the presidential election of Guillermo Endara, an act described by the USA then as “cowardly”. On December 20, 1989, the USA launched military action to topple Noriega. Two weeks later, on January 3, 1990, Noriega landed in Metropolitan Correction Centre, Miami. He was a criminal indictee.
A lot has evolved since then. In May 1990, ECOWAS adopted a proposal by Nigeria to establish and deploy a military intervention in Liberia, known as the ECOWAS Monitoring Group, ECOMOG. In the eyes of many, the intervention was a thinly disguised effort to save the regime of Samuel Doe in Liberia. Doe, a Master Sergeant, had seized power in Africa’s oldest republic, Liberia, in April 1980, after killing then incumbent, President William Tolbert, before transforming himself into a civilianised soldier in pre-determined elections in 1986. His brutal and erratic rulership ultimately precipitated a murderous civil war in Liberia, which quickly threatened its neighbours with contagion.
For justification, the deployment of ECOMOG in Liberia was grounded in an invitation from Mr. Doe’s government supposedly issued under the terms of the Protocol Relating to Mutual Assistance in Defence, an agreement adopted by ECOWAS member States in Freetown, Sierra Leone, in 1981. The UN would later buy into the model of ECOMOG and of regional action in support of peace and security.
In January 2017, ECOWAS with support from the African Union and reinforced by the United Nations Security Council deployed to enforce the outcome of the election in The Gambia in which defeated incumbent, Yahya Jammeh, having initially conceded defeat, changed his mind and refused to vacate office. The victorious new president, Adama Barrow, reinforced the legal authority of the deployment with an invitation of his own.
In Niger, notably, ECOWAS and the AU are at odds.
The use of force in defence of the idea of a sovereign republic or of democracy is so high-minded that, quite often, presidents lack the patience to finesse its legality. In November 1903, military sleigh of hand by President Theodore Roosevelt achieved the secession of Panama from Colombia. In Cabinet subsequently, President Roosevelt asked his Attorney-General, the appropriately-named Philander Knox, to provide the legalese in support of the operation, to which Mr. Knox is reported to have infamously responded: “Mr. President, do not let so great an achievement suffer from any taint of legality.”
The leaders of ECOWAS could desperately do with their own Philander Knox as they contemplate their options in Niger Republic. If they can find one, they may not have to worry about soiling their bayonets for democracy with any taint of legality. But they will still need a workable CONOPS. That may be the practical problem that compels ECOWAS ultimately to give diplomacy a chance in Niger.
There is precedent for this. One week after Colonel Pierre Buyoya’s (second) coup against the elected government of President Sylvestre Ntibantunganya on July 25, 1996, seven neighbouring countries initiated a complete blockade of land-locked Burundi at the beginning of August. By common consent, the sanctions “ultimately played a major role in pressuring the Buyoya government into the Arusha negotiations due to their severe cost”, which forced Buyoya in 2003 to cede power to a new president, Domitien Ndayizeye.
A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu